State ex rel. Ocasek v. Riley

377 N.E.2d 792, 54 Ohio St. 2d 488, 8 Ohio Op. 3d 466, 1978 Ohio LEXIS 605

• Court: Ohio Supreme Court
• Decided: June 28, 1978
• Docket: Nos. 78-604 and 78-605
• Status: Published

Opinion

Per Curiam.

The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Lehman, v. Cmich (1970), 23 Ohio St. 2d 11.

Defendants-appellants in Board v. Walter filed their application for stay in the Conrt of Common Pleas pursuant to Civ. R. 62, which provides in part:

“(B) Stay upon appeal. When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. * * *

“(C) Stay in favor of the government. When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.”

Pursuant to this rule, defendants-appellants are entitled to a stay of the judgment as a matter of right. The lone requirement of Civ. R. 62(B) is the giving of an adequate supersedeas bond. Civ. R. 62(C) makes this requirement unnecessary in this ease, and respondent has no discretion to deny the stay. Therefore, the evidentiary hearing on the stay and the related depositions are inappropriate proceedings.

Accordingly, the writs of prohibition are allowed.

Writs allowed.

O’Neill, C. J., Herbert, Celebrezze, W. Brown, P. Brown, Sweeney and Locher, JJ., concur.